Citation Nr: 9911124
Decision Date: 04/22/99 Archive Date: 04/30/99
DOCKET NO. 97-30 687 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for a right knee
disability, back disability, cardiovascular disability to
include hypertension, and diabetes mellitus.
2. Entitlement to service connection for post-traumatic
stress disorder.
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from May 1944 to April
1946.
This case comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from adverse action by the
Montgomery, Alabama, Regional Office (hereinafter RO). In
November 1998, a hearing was held at the RO before the Board
Member rendering this decision, who was designated by the
Chairman to conduct the hearing pursuant to 38 U.S.C.A.
§ 7102(b) (West 1991 & Supp. 1998).
The issue of entitlement to service-connection for post-
traumatic stress disorder requires additional development,
and will be addressed in the remand attached to the end of
this decision.
FINDING OF FACT
There is no competent evidence of record showing an etiologic
relationship between a current disability associated with a
right knee disorder, back disorder, a cardiovascular disorder
to include hypertension, or diabetes mellitus and service.
CONCLUSIONS OF LAW
Well-grounded claims for entitlement to service connection
for a right knee disability, back disability, a
cardiovascular disorder to include hypertension, or diabetes
mellitus have not been presented. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113, 5107(a) (West 1991); 38 C.F.R. 3.303, 3.307,
3.309 (1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
Service connection may be granted for a disability resulting
from injury or disease incurred in or aggravated by active
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.
There are some disabilities, including diabetes mellitus and
cardiovascular disorders to include hypertension, for which
service connection may be presumed if the disorder is
manifested to a degree of 10 percent or more within one year
of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113;
38 C.F.R. §§ 3.307, 3.309.
A person who submits a claim for VA benefits has the burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded. 38 U.S.C.A. § 5107(a). There is no further duty
to assist the veteran if a well-grounded claim is not
submitted. Tirpak v. Derwinski, 2 Vet. App. 609 (1992);
Murphy v. Derwinski, 1 Vet. App. 78 (1990). The evidentiary
assertions by the veteran are to be accepted as true for the
purposes of determining whether a claim is well grounded,
except where the evidentiary assertions are inherently
incredible or are beyond the competence of the person making
the assertions. See King v. Brown, 5 Vet. App. 19 (1993).
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter Court) has stated that medical evidence
showing a nexus between present disability and in-service
pathology is required to form a well-grounded claim for
service connection. Caluza v. Brown, 7 Vet. App. 498, 506
(1995); see also Edenfield v. Brown, 8 Vet. App. 384, 388
(1995). While it has essentially been claimed by and on
behalf of the veteran that there is a nexus between a present
disability associated with a right knee disorder, back
disorder, hypertension or other cardiovascular disorder, and
diabetes mellitus and service, there is no competent
objective evidence showing any such nexus. The veteran is
not competent to establish that medical nexus. As such, the
claims for service connection for service connection for a
right knee disability, back disability, cardiovascular
disorder to include hypertension, and diabetes mellitus are
not well grounded and must therefore be denied.
Summarizing the relevant evidence of record, while it is
acknowledged that the service medical records were apparently
destroyed in the fire at the National Personnel Records
Center in St. Louis 1973, the RO has obtained extracts from
the Office of the Surgeon General of the Department of Army
referencing in-service treatment of nasopharyngitis. The
first post-service clinical evidence of record is contained
in a private clinical report dated in September 1980
indicating the veteran suffered from hypertension and chronic
pain in the right knee. It was indicated on this report that
the hypertension was originally found in 1972. The first
evidence of a back disability is a reference to sciatica
contained in a May 1983 private treatment report. A June 1988
private treatment report referenced type II diabetes.
Additional private clinical records dated through February
1997 in pertinent part reflect treatment for hypertension,
diabetes mellitus, and back and knee disabilities. The
clinical history provided in these documents is highly
probative as it was offered in support of treatment, and in
an attempt to get better. No clinical history is recorded
that traces these problems back to service.
A December 1996 VA examination listed the current diagnoses
as chronic low back pain and history of lumbar laminectomy
with sciatica of the left leg; status post prosthetic right
knee; and arteriosclerotic heart disease with congestive
heart failure. Significantly, none of these disabilities
were etiologically linked to service following by the
physician who conducted this examination, nor is there any
other medical evidence of record suggesting an etiologic link
between a current disability due to a right knee disorder,
back disorder, cardiovascular disorder to include
hypertension, or diabetes mellitus and service.
In reviewing the evidence of record summarized above, the
Board has also considered the written argument and sworn
testimony submitted by and on behalf of the veteran at the
November 1998 hearing. More specifically, the Board has
considered the testimony presented by the veteran that
hypertension was first manifested as headaches during service
and that he was treated for this condition within one year of
separation from service; that he suffered from "skipping"
of the heart and "sugar diabetes" prior to, during and/or
shortly after service; that his right knee disability was the
result of in-service marching; and that his back disability
was the result of in-service calisthenics. However, absent
any independent supporting clinical evidence from a physician
or other medical professional, statements by laypersons
expressing the opinion that disabilities are service
connected are not probative. Espiritu v. Derwinski, 2 Vet.
App. 492, 495 (1992). As shown in the summary of the
evidence in the preceding paragraphs, there is no independent
clinical evidence of record supporting the assertions with
regard to a nexus between current disability associated with
the a knee disorder, back disorder, cardiovascular disorder
to include hypertension, or diabetes mellitus and service,
and the objective clinical evidence that is of record
contradicts, rather than supports, these assertions.
Accordingly, the Board must find the claims for entitlement
to service connection for a knee disability, back disability,
cardiovascular disability to include hypertension, and
diabetes mellitus to be not well-grounded. Caluza, 7 Vet.
App. at 498, 506 (1995); Edenfield, 8 Vet. App. at 384, 388.
In making the above determination, the Board has given
consideration to the fact that the service medical records
were destroyed as a result of the 1973 fire. However, even
assuming, for the sake of argument only, that there were some
service medical records showing treatment for the
disabilities at issue, the lack of any competent clinical
evidence showing a nexus between a present disability
associated with back or knee disorders, a cardiovascular
disorder to include hypertension, or diabetes mellitus and
service precludes a grant of service connection for any of
these disabilities.
The Board, in finding the claims for service connection at
issue to be not well grounded, has considered the obligation
of the RO under 38 U.S.C.A. § 5103(a) and the holding in
Robinette v. Brown, 8 Vet. App. 69, 77-80 (1995) to advise
the veteran of the evidence needed to complete his
application when he has failed to present a well-grounded
claim. The Board concludes that this obligation to the
veteran was fulfilled by the RO to the extent that it
notified the veteran in the May 1997 rating decision and
August 1997 statement of the case of the evidence necessary
to form a well-grounded claim for service connection.
Moreover, there is no indication that there are medical
reports that are available which would show the required
nexus between a current disability associated with the
disorders for which service connection is claimed and an
event, symptomatology or pathology incurred during service.
In this regard, efforts were undertaken at the November 1998
hearing to determine whether there might be such evidence as
employment physicals, insurance physicals, reports from
periodic or annual Army Reserve physicals, or other evidence
to assist the veteran in the development of his claim, but it
was not indicated by the veteran or his wife that such
evidence would be available.
The Board also notes that the RO denied the claims for
service connection for the disabilities at issue for
essentially the same reasons as set forth above, and the
veteran was informed of the evidence needed to support a
well-grounded claim for service connection. Thus, to the
extent that the RO may not have specifically found the claims
for service connection for the disabilities at issue to be
not well-grounded, there is no prejudice to the veteran
resulting from the Board's determination that his claims for
service connection for these disabilities are not well-
grounded as he has been informed as to the evidence needed to
support these claims. Bernard v. Brown, 4 Vet. App. 384
(1993).
ORDER
The claims for entitlement to service connection for a right
knee disability, back disability, cardiovascular disability
to include hypertension, and diabetes mellitus are not well-
grounded and are therefore denied.
REMAND
The Board concludes that the claim for service connection for
post-traumatic stress disorder (hereinafter PTSD) requires
additional development, particularly with regard to the issue
of the stressors claimed by the veteran to have resulted in
PTSD.
The question of whether the veteran was exposed to a stressor
in service is a factual determination, and the VA is not
bound to accept a veteran's statement in this regard simply
because treating medical providers have done so. Wood v.
Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration,
1 Vet. App. 406 (1991); Wilson v. Derwinski, 2 Vet. App. 614
(1992). A review of the record indicates that the RO made
some efforts to obtain details about the veteran's military
service, to include attempting to obtain the veteran's
personnel file, or "201 file," that were unsuccessful.
However, the Board concludes further efforts to verify the
stressor or stressors alleged by the veteran to have resulted
in PTSD is warranted in order to fulfill the duty to assist
the veteran. 38 U.S.C.A. § 5107(a) (West 1991).
The veteran testified at his November 1998 hearing that his
duties during service included liberating the Buchenwald
Concentration Camp during World War II, and that he is so
traumatized by memories of this experience that he developed
PTSD. The veteran's Form 53-55 reflects duty in Europe
during World War II, but his decorations and citations listed
therein are not indicative of combat duty. This document
indicated the veteran served with the 120th Army Evacuation
Hospital, and that his military occupational specialty was
that of a cook.
Following a description of distressing memories of the
liberation of Buchenwald at a December 1996 VA psychiatric
examination, the psychiatrist who conducted this examination
concluded that the veteran had post-traumatic stress disorder
with major depression.
Service connection for post-traumatic stress disorder
requires medical evidence establishing a clear diagnosis of
the condition, credible supporting evidence that the claimed
inservice stressor actually occurred, and a link, established
by medical evidence, between current symptomatology and the
claimed inservice stressor. 38 C.F.R. § 3.304(f) (1998). If
the claimed stressor is related to combat, service department
evidence that the veteran engaged in combat or that the
veteran was awarded the Purple Heart, Combat Infantryman
Badge, or similar combat citation will be accepted, in the
absence of evidence to the contrary, as conclusive evidence
of the claimed inservice stressor. Id. "Where it is
determined, through recognized military citations or other
supportive evidence, that the veteran was engaged in combat
with the enemy and the claimed stressors are related to such
combat, the veteran's lay testimony regarding claimed
stressors must be accepted as conclusive as to their actual
occurrence and no further development for corroborative
evidence will be required, provided that the veteran's
testimony is found to be 'satisfactory,' e.g., credible, and
'consistent with the circumstances, conditions, or hardships
of [combat] service.' " Zarycki v. Brown, 6 Vet. App. 91,
98 (1993); 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f).
However, where the VA determines from the evidence that the
veteran did not engage in combat with the enemy or where the
veteran, even if he did engage in combat, is claiming
stressors not related to combat, his lay testimony alone is
not enough to establish that the stressors actually occurred.
Rather, his testimony must be corroborated by "credible
supporting evidence" and must not be contradicted by service
records. 38 C.F.R. § 3.304(f); Doran v. Brown, 6 Vet. App.
283, 289 (1994); Zarycki v. Brown, 6 Vet. App. at 98.
It may be possible that claimants such as the veteran who did
not have a combat MOS and did not receive combat awards or
decorations nevertheless "engaged in combat with the
enemy." However, unless other service department evidence
can be developed to show such engagement, the veteran must
provide evidence to corroborate his testimony that the
stressor he claims to have experienced in service actually
did occur. 38 C.F.R. § 3.304(f); Wood, 1 Vet. App. at 190,
192-93; Zarycki, 6 Vet. App. at 92, citing Manual M21-1, Part
VI, para. 7.46(e).
In attempting to obtain evidence to confirm the veteran's
presence at the liberation of Buchenwald, the RO should
inform the veteran that his cooperation is essential to this
task. The Court has noted that in cases such as this one,
"The duty to assist is not a one-way street. If a veteran
wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence." Wood, 1 Vet.
App. at 193. If upon remand the RO is unsuccessful in
developing evidence to show that the veteran engaged in
combat with the enemy, the RO must inform the veteran that he
is required to submit "other credible supporting evidence,"
such as the statements of fellow service members who
witnessed the stressful events associated with the liberation
of Buchenwald that the veteran alleges he experienced in
service. 38 C.F.R. § 3.304(f); Doran, 6 Vet. App. at 289.
If sufficient evidence is developed so that the RO finds as
fact that the alleged stressor actually occurred, the next
step in adjudicating the claim is to determine whether the
stressful event was sufficiently grave or severe so as to
cause PTSD. The Court has held that this determination is a
medical matter, and therefore adjudicators may not render a
determination on this point in the absence of independent
medical evidence. West, 7 Vet. App. at 70, 78-79 (1994).
In light of the foregoing and to ensure that the VA has met
its duty to assist the claimant in developing facts pertinent
to the claim, the case is REMANDED to the RO for the
following development:
1. The RO should request from the
veteran a comprehensive statement
containing as much detail as possible
regarding the stressors to which he
alleges he was exposed in service. The
veteran should be asked to provide
specific details of the claimed stressful
events he experienced during service,
such as dates, places, detailed
descriptions of events, and any other
identifying information concerning any
other individuals involved in the events,
including their names, ranks, units of
assignment or any other identifying
detail.
The veteran should be advised that this
information is necessary to obtain
supportive evidence of the stressful
events he claims to have experienced, and
he must be asked to be as specific as
possible, because without such details,
an adequate search for verifying
information cannot be conducted. He
should also be advised to submit any
verifying information that he can
regarding the stressors he claims to have
experienced in service, such as
statements of fellow service members. He
is further advised that failure to
respond may result in adverse action.
2. When the additional information is
obtained, the RO should review the file
and prepare a summary of all the claimed
stressors. This summary, and all
associated documents, should be sent to
the United States Armed Services Center
for Research of Records (USASCRUR),
formerly the United States Army and Joint
Services Environmental Support Group
(ESG) or other appropriate organization.
This organization should be requested to
provide any information that might
corroborate the veteran's alleged
stressors, to include whether a cook
attached to the 120th evacuation hospital
during a (currently) unspecified time in
1945 or 1946 would have been involved in
combat or the liberation of the
Buchenwald Concentration Camp.
3. Following the above, the RO must make
a specific determination, based upon the
complete record, as to whether the
veteran "engaged in combat with the
enemy." If so, the RO should accept the
veteran's lay testimony -- in the absence
of evidence to the contrary and as long
as it is credible and consistent with the
circumstances of service -- as conclusive
evidence of the occurrence of the
stressor. If the RO determines that the
evidence does not show that the veteran
"engaged in combat with the enemy," the
RO should consider all credible
supporting evidence developed and
determine whether the evidence is
sufficient to establish the occurrence of
the stressor.
4. Thereafter, the veteran should be
scheduled for a comprehensive VA
psychiatric examination by, if possible,
the VA psychiatrist who examined the
veteran in December 1996, to determine
the diagnoses of all psychiatric
disorders that are present. The entire
claims folder must be made available to
the examiner prior to this examination.
All indicated tests should be
accomplished and all clinical findings
should be reported in detail. The RO
must specify for the examiner the
stressor or stressors that it has
determined are established by the record
and the examiner must be instructed that
only those events may be considered for
the purpose of determining whether the
veteran was exposed to a stressor in
service. The examination report should
reflect review of pertinent material in
the claims folder, and the examiners
should integrate the previous psychiatric
findings and diagnoses with current
findings to obtain an accurate measure of
the veteran's psychiatric status. To the
extent that psychological testing is
indicated, those studies should also be
conducted.
If the diagnosis of PTSD is deemed
appropriate, the examiner is requested to
specifically comment on the rationale for
determining that the alleged stressor(s)
found to be established by the record
were sufficient to produce PTSD and
specifically link current symptomatology
to one or more of the inservice stressors
found to be established by the record.
5. The RO should then readjudicate the
issue of entitlement to service
connection for PTSD as indicated, with
documentation of the consideration of the
legal principles outlined in the body of
this remand. In the event that the claim
for service connection for PTSD is not
granted, the veteran should be provided
with a supplemental statement of the case
and afforded a reasonable opportunity to
respond thereto.
Thereafter, the case should be returned to the Board for
further appellate review, if indicated. The purpose of this
REMAND is to assist the veteran in the development of his
appeal, and the Board does not intimate an opinion, either
legal or factual, as to the ultimate disposition warranted in
this case. No action is required of the veteran until he is
notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals